[I]f the first amendment continues to bar efforts to protect privacy, then privacy may really have an uphill battle in the future.

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, Jami Floyd, legal analyst, sometime guest host for The Brian Lehrer Show, and IAFC blogger, and Jeffrey Rosen, professor of law at The George Washington University and the legal affairs editor of The New Republic, discuss the decisions that came down from the Supreme Court today.

The Supreme Court is in the final stretch of this term with final decisions coming on Monday. On Thursday morning, several decisions were issued by the court including one protecting data mining from corporations.

That case, Sorell v. IMS involved the validity of a Vermont law which prevented data mining operations from selling prescription information from pharmacies to pharmaceutical companies, so they could better target doctors with advertising.

Vermont passed a law preventing the practice. The court ruling overturned that law six-to-three, with Justice Sotomayor joining the five conservatives judges, in a ruling that found that the First Amendment prevents privacy from trumping free speech. Rosen said the free speech concern was that marketing was the only purpose for which the disclosure wasn’t allowed, and the data mining operations claimed that was discriminatory.

Some will say that this is another example of the court using the First Amendment to bolster the rights of big business at the expense of Americans, as Senator Leahy did in response to the decision. But here, unlike the Citizens United case, Justice Sotomayor agreed with the conservatives.

Justice Steven Breyer issued a powerful dissent, saying that commercial speech should get less protection than other forms of speech and that there must be more deference to the privacy interest. Rosen predicted that in this era of Facebook, data mining will be one of the great privacy issues of the day.

The question of whether if you disclose intimate information to one party, they can disclose that for another purpose, including data mining, is sort of the central privacy commission in the digital age. If the First Amendment continues to bar efforts to protect privacy, then privacy may really have an uphill battle in the future.

Justice Alito’s decision to side with free speech was also surprising. Alito has historically voted on the side of privacy, including when he was the lone dissenter in both the ruling that “crush” videos (where an animal is killed for entertainment purposes) are protected free speech and the ruling that the military funeral protests of the Westboro Baptist Church are protected free speech.

This may be an indicator that Alito’s pro-business sympathies trump his pro-privacy concerns, but Floyd said that justices are constantly evolving during their term. More traditional First Amendment cases like Westboro and even violent video games might be easier for the justices to decide than the murkier world of digital data.

He may evolve more in the brave new world context of privacy, data, Facebook, et cetera.

Unlike in Europe, where central privacy rights mandate that personal information shared for a purpose cannot be disclosed to third party without consent of the person concerned, Rosen said the United States Supreme Court has consistently shown hostility toward privacy concerns of that nature.

The obvious trend we’re seeing is a tremendous consensus that free speech wins in case after case. Lots of people expect to see it on Monday when the court should end its term, they’re going to strike down California’s ban on violent video games, again with the idea that free speech is more important than traditional values, like privacy.

Floyd pointed out that there have been more unanimous or near-unanimous votes, which she sees as evidence that Chief Justice John Roberts is taking a stronger role in the court.

I think the Chief is starting to emerge as a strong chief… perhaps behind the scenes there at the court there is the stronger and stronger hand of a very conservative chief justice.

Rosen agreed, pointing out that the as of June 3, according to the SCOTUS blog, only 12 percent of cases were five-to-four, and 51 percent were unanimous. In 2005, when Roberts entered his first term as Chief Justice, 12 percent of decisions were five-to-four, but in 2006 that number jumped to 33 percent, one of the most divisive terms in recent history. In 2007 it fell to 17 percent, then increased slightly to 18 percent last year. He thought part of that might be attributable more to the content of the cases.

We’re seeing more business cases and fewer culture war cases, and that leads to more unanimity.

Though not every business case escapes ideological divisiveness. Another ruling on Thursday was Pliva v. Mensing, in which a drug malfunctioned. The manufacturer claimed that the FDA oversight of the drug made them not liable. The court found five-to-four along political lines that it agreed that the manufacturer was not liable.

There were still surprises from the pro-business court. One ruling issued Thursday showed the court siding with the little guy against big business. This was a Microsoft appeal from a jury verdict for patent infringement, where a small Canadian firm was arguing that Microsoft infringed on their patent. The court ruled against Microsoft, which Floyd found significant.

The case really matters for anyone who has a good idea and wants to protect it. And believe it or not, for all those who think that the US Supreme Court always sides with big business, they said no.

Comments [5]

Harrison Bergeron
from Fair Lawn NJ

This is a completly stupid application of "free speech".

My layman's understanding is that the Founders gave us the right to free exchange of information in order that we may discuss our government without fear of persecution. The application of free speech and free press to justify commercial ventures was not likely the intention of these parts of the constitution.

I believe that "free speech" was the right given to all private citizens; and that "free press" was the right given to professionals in the information industry, in the only form that existed at that time -- newspapers. I beleive that professionals on television, on the radio and on the internet, are excercising the right of "free press", where as private citizens who might call in to a talk show or write comments on WNYC.Org/its-a-free-country", are excercising the right of "free speech".

So at least: the supreme court is wrong for applying the wrong constitutional principle to the case. This is clearly a commercial matter and therefore a professional matter. So if anything free press might apply.

But I don't think so. This seems like theft. If the data mining company can sell the personal information, then it clearly has monetary value. The individual case might be a petty larceny but on a large scale this seems like a grand larceny.

In any case, we do not have any reasonable expectation of privacy today. Therefore all law on privacy versus free speech is irrelevant and actually worthless in practice.

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